LEGAL HISTORY:
CONTINENTAL LEGAL HISTORY

Tentative Syllabus: Introduction

This course is also listed in the Faculty of Arts and Sciences as Medieval Studies 119. The undergraduates will meet together with the law students for lectures on Mondays and Wednesdays from 11:10 to 12:00 (room Sever 102). The law students and FAS graduate students will meet for “Section” on Tuesdays from 10:40 to 12:00 in the Law School (room WCC 3018). Our section meetings will serve two purposes: (1) to do a more sophisticated number on some of the documents than is possible with undergraduates, and (2) briefly review some of the history that we will be discussing with the undergraduates in their separate classes. There is a separate section for the undergraduates on Thursdays and a separate “discussion class” for the undergraduates on Fridays from 11:10 to 12:00. Law students and FAS graduate students are not welcome at the undergraduate section meetings. You may come to the “discussion classes” on Fridays if you wish, but please don’t be offended if I ask you not participate in certain discussions or if I don’t call on you at certain times.

Under the old calendar FAS classes in the spring began two days after the Law School’s did. That gave us an opportunity to do an introduction to the course particularly for lawyers. This year we will have to jam that into our first “section meeting” on on Tuesday, January 29. The slight difference in calendars also means that our “section meetings” will to be squeezed toward the end of the course to enable us to cover some of the nineteenth century developments at the end of the semester. Law school classes do meet on President’s Day (Mon., February 18), but those in the FAS do not. We’ll meet in the Law School (room WCC 3018). The FAS classes last a three days longer than do the Law School’s. We need the first of those days to finish the story. (If you have an exam on this day, let me know. I’ll post my notes on the web.)

There are two requirements for credit in the course: (1) a short paper (no more than five double-spaced typed pages exclusive of notes); (2) a final exam (“take-home,” distributed in the final class and due at the end of exam period). (I will consider allowing students to write a term paper in lieu of taking the final exam. More about this below under “papers.”)

For a history course, the reading load is fairly light, but much of it is documentary material, and is thus relatively slow going. Give priority to the documentary materials. Almost all the classes have documentary assignments, and those which do will devote a considerable amount of time to the documents. You’ll be lost if haven’t read them in advance. You should bring the multilithed Documents (see below under “Readings”) with you to every class.

This course is an attempt to discover how the distinctive features of the “civil” law of the European Continent arose and why these distinctions persisted. It is also an attempt to discover how the legal systems of Continental Europe developed and were influenced by a group of ideas about politics and public order that are frequently invoked today when we speak of the “Western legal tradition.” In order to do this we have to conduct a “Cook’s tour” of European legal history, to survey the sources and literature of the law from the fall of Rome (roughly 500 A.D.) to the codifications of the 19th century. That gives the course something of the quality of “if-this-is-Tuesday-it-must-be-Belgium.” I have attempted to give focus to the course by emphasizing three topics, the capture of wild animals as the foundation of “property,” the formation of marriage, and the rules about the use of witnesses in criminal and civil procedure. I wish there were a more strictly public-law topic that we could use as well, but no public-law topic has deep enough roots to allow us to trace it over this long period of time. Hence our examination of public law will have to come about as we unfold the history of institutions within which the law operated. We focus on France. We will also deal with Germany, Italy, Spain and the Low Countries, but France give us the backbone, while the other areas give us examples (as does England by way both of comparison and contrast). The rest of the European Continent will get only an occasional mention.

We will proceed largely by way of lecture, interspersed with examination of documents that are contained in Documents. These documents will largely carry the story of wild animals, marriage and witnesses. In each period we will ask two questions: (1) how does the way people were thinking about law in this period proceed from what had gone before and lead to what was to come next (a largely diachronic question)? And (2) how was the way that people were thinking about law in this period relate to the broader political, social and intellectual developments in the period (a largely synchronic question)? The ultimate question is comparative: why did Continental law develop its distinctive features?

No one (including the instructor) comes to a course like this with all the necessary background information. I will try to say everything that I think you need to know to make sense out of what is going on, and so, I will assume that you do not have any of the relevant background. On the other hand, in a survey course as broad as this one, I can say things only once. For this reason, I would suggest, particularly if you have not taken a course in medieval and/or early modern European history, that you read a good textbook on one or both of these topics. In the past I have asked the Coop to stock H. G. Koenigsberger’s, Medieval Europe, 400–1500 (1987) and the same author’s, Early Modern Europe, 1500–1789 (1987). The books are now out of print, but second hand copies are readily available. Both books are a relatively quick read, particularly if you’re not trying to memorize kings and battles and dates. I have included the page numbers below at the relevant spots enclosed in square brackets at the end of the assignment.

If you have taken a medieval and/or early modern European legal history course someplace else or if you have had a European history course that devoted some time to legal development in the same periods, you probably should not take this course. There is a seminar this semester (Legal History: Continental Legal History: Seminar) for which you are ready.

There is, unfortunately, no really good textbook in English of European legal history. In the past we asked the students to buy either Manlio Bellomo’s, The Common Legal Past of Europe: 1000–1800 or Raoul van Caenegem’s An Historical Introduction to Private Law. Previous course evaluations suggested that the students found van Caenegem more helpful than Bellomo. Hence, that is the book that we are asking you buy this year. Neither Bellomo nor van Caenegem is really a textbook. Probably the best textbook in English is Robinson, Fergus and Gordon, An Introduction to European Legal History (2d ed., 1994) [RFG2]. (There’s a third edition of RFG2 [RFG3], which is shorter and focuses more on the later period. It is available only in the Law School, where it’s on permanent reserve.1) As an alternative, we have also listed below readings in three other books. One of them is a classic: Paul Vinogradoff’s, Roman Law in Medieval Europe. Two others are relatively new and controversial, Alan Watson’s, The Making of the Civil Law and Harold Berman’s Law and Revolution. Pdf copies of the extracts from Bellomo, van Caenegem, Vinogradoff, Watson, and Berman are found under ‘lectures’ on the website. They are also available in ‘course-pack’ form on reserve in the Law School.

1 Another textbook, Randall Lesaffer, European Legal History: A Cultural and Political Perspective (2009), is also on reserve for the course in the Law School. If you read it, let us know what you think of it. Our initial impression is that it is interesting, but that it doesn’t say enough about the law.

By and large, I think that the books other than RFG do a better job of covering the topics to which they refer than does RFG. On the other hand, some people really like a text book, and none of the books extracted is a text book, though Bellomo and van Caenegem come close. You should read either RFG or the extracts from the other books for class, and you might want to read what you haven’t read when you’re reviewing the course for the exam.

The multilithed Documents2 contains, as the name implies, a number of documents, legal sources in translation. These vary greatly in the length of their extracts. When they are long, I want you to get a sense for the overall structure; when they are short, you should focus on the detail. The Syllabus contains some notes as to what is important.

2 Previous editions of this have been called Outlines and Documents. We did not inlcude the outlines this year, because they change constantly and are better served up on the web.

Outlines for most of the classes are posted on the course’s website. I will probably be revising these as we go along, but you should bring them with you to class. Having this kind of material already written down saves you time in taking lecture notes.

There will be a short paper required for the course. It should be no more than five double-spaced typed pages exclusive of notes. It may analyze one or a couple of the documents in the Documents (or you can choose a document on your own). The basic idea is to present an idea supported by evidence (primary sources please). You may do the paper any time during the semester. You should have chosen a topic no later than Tuesday, March 26. You should turn in your first draft no later than Tuesday, April 16. The final draft should be turned in before the beginning of the 1L exam period (Fri., May 10).

The final exam will be a “take-home” exam distributed in the last class and due no later than May 10. (You do not turn in the exam to the registrar’s office; rather, you turn it into my assistant, Ms. Reader, in Room 518 in Hauser Hall, or send it to me by email.) The exam will contain two questions (it may also contain some identification questions). The first question will give you a document drawn from the Documents and will ask you to comment on the document and its significance. The second will call for a more wide-ranging essay. Once more, it will be due before the beginning of the 1L exam period (Fri., May 10).

If you wish to write a term paper in lieu of the final exam, you must get my approval of your term paper topic. The term paper should cover material in at least two of major time periods of the course (e.g., early medieval and late medieval, or late medieval and early modern). It may trace the history of a particular idea or institution from one period to another or it may compare ideas and institutions in two different periods. In order to get my approval of a term-paper topic, you will need to have completed your short paper and to turn in a one-page statement or outline of what you plan to write about by Tuesday, April 16. Students in the past who have taken the paper option in the past thought that it was fun but that it involved more work than taking an exam.

My office is in Hauser 512 in the Law School. My assistant is Ms. Reader in Hauser 518. My office hours are currently scheduled from 2:00–4:00 on Tuesdays, or by appointmen. An appointment is usually not necessary for the office hours, but there is a sign-up sheet on the door of my office. That sheet will also tell you where my office hours will be held. It probably won’t be in my office.